On appeal from a judgment of the Second District Court of the city of Newark.
For the appellant, George F. Lahey, Jr.
For the respondent, Edward R. McGlynn.
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. One Borer sustained personal injury at the hands of a servant of Hamilton Farms, Inc., a dairy concern (hereinafter referred to as the "assured"), while engaged in the master's service; and the point in controversy is which of two policies of liability insurance, issued by plaintiff and defendant, respectively, affords indemnity coverage.
Borer instituted action to recover the consequent damage. Each insurer denied coverage, and, upon defendant's refusal so to do, plaintiff undertook defense of the action, and gave notice to defendant that it "would look to" it "for reimbursement in the event of an adverse verdict." That contingency happened. Plaintiff paid the judgment entered thereon, and received from the assured "an assignment of its rights against the defendant" under the latter's policy. Defendant concedes "plaintiff's right to sue in its own name for the amount claimed;" and it was stipulated that judgment should go in accordance with the determination of the issue stated above.
The insuring clause of the public liability policy issued by plaintiff covers accidents caused by the assured's drivers and chauffeurs, "except those arising in connection with the maintenance, use or operation of teams or motor vehicles."
The pertinent provision of defendant's policy obligates it "to pay * * * each loss by reason of liability imposed upon" the assured "by law for damages, * * * caused by an accident * * * by reason of the use, ownership, maintenance, or operation of the motor vehicle or trailer, or, if the motor vehicle is of the commercial type, by reason of the loading or unloading of merchandise, provided the insured has, as respects such loading or unloading operations, no other collectible insurance."
The accident occurred while these policies were in force; and the facts are not in dispute. It is stipulated that a chauffeur of assured "had driven an automobile belonging to said concern to the store of Borer, who was a customer of said corporation and had removed from said automobile truck a can of milk and a cake of ice, which milk and ice the chauffeur had carried from said automobile to the store of the said
Borer and while placing the milk and ice in an icebox maintained in the interior of the premises of said Borer, injured the said Borer." The chauffeur testified that, while he was in charge of the "platform" at the assured's plant, Borer asked for the immediate delivery of the merchandise referred to. As was the custom when a "regular deliveryman" was not available, the witness delivered the articles to Borer's store, using one of the assured's trucks for the purpose. He thus described his own actions and the attending circumstances: "Rolled a can of milk to the back of the store where he [Borer] had his icebox; lifted the can of milk up; I put it into the icebox; brought the ice in, chopped it up around. Before I chopped it up, I had the ice pick in my back pocket. * * * As I lifted the ice up, and Mr. Borer passed me, for some reason or other, I don't know, whether it was intentional, he was going to slap me; but I saw the shadow of his arm, and I moved forward. As I did, the momentum moved down the pick and stabbed his wrist."
The initial inquiry is whether the accident thus occurring arose "in connection with the maintenance, use or operation" of assured's motor truck; ...